Max Channon explains the difference between a Parking Charge Notice and a Penalty Charge Notice - and how you can avoid paying

A couple of years ago I received a parking 'fine' for £100 after parking in a poorly-lit car park which I erroneously believed was free after 8pm.

I refused to pay, but did send the parking firm a postal order for £20, which would have more than covered their potential losses of £1 for the period I was parked - and instructed them to either accept that payment, which was made without admission of liability, or take me to the small claims court.

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They rejected my payment and for months I received repeated demands for full payment of the £100, plus additional fees, via a debt collection company.

I never paid - and they never took me to court.

Would you know what to do if you received a parking fine?

Parking 'tickets' issued by private companies in private car parks are often referred to as fines – but they are not. They are little more than an invoice requesting payment.

In general, only councils have the power to issue parking fines – or Penalty Charge Notices. These powers are granted by legislation passed by Parliament and cover various parking misdemeanours, such as breaching the terms and conditions of parking in council-controlled car parks and parking spaces.

Private landowners and car parking firms have no such legal power. They cannot issue 'Penalty Charge Notices', and so they issue 'Parking Charge Notices', which often look and read like the legitimate fines issued by authorities – and both are abbreviated to 'PCN', which adds to the confusion.

So what, exactly, is a 'Parking Charge Notice'?

Unfortunately, to understand this you'll need to know a few basics of contract law, the law which applies to most private car parking agreements. I'll try to keep this as brief, simple and painless as possible - but I can't promise not to make it interminably dull, because it's law, and law is interminably dull.

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Anyway… for a contract to form, three main elements must be present: there must be an offer, an acceptance of that offer, and a thing called consideration - something of benefit or value for all the parties involved in, or privy to, the contract.

In a private 'pay and display' car park, by parking you accept the car park owner's 'offer' of parking at an agreed fee. The 'consideration' you receive is the benefit of parking your car, while the consideration received by car parking firm is the fee you pay for the privilege.

We explain the truth behind parking fines

Failing to pay this fee is a breach of contract and the car parking firm can take you to the small claims to court to recover their losses.

These losses, perhaps a couple of quid for a couple of hours parking, are usually far less than the excess parking charges – often between £60 and £100 - which people wrongly think of and refer to as 'fines'.

These charges, which are clearly an attempt to prevent the motorist from breaching contract, could constitute a 'penalty clause' - a term or condition in a contract which demands an excessive financial charge be paid if one party breaches the contract.

Under contract law, courts cannot and do not enforce 'penalty' clauses: In plain English, this means a court will not order you to pay a 'penalty' clause.

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This begs the question, are Parking Charge Notices penalty clauses and, therefore, unenforceable in the courts?

After doing much research I could no find any evidence of this argument ever being tested in court in relation to 'Pay and Display' car parks – and, two years later, the parking firm I was in dispute with has still not to taken me to court to test this argument.

If they lost, the ruling would potentially set a legal precedent which undermines the private car parking industry's ability to demand money from motorists.

It's important to note this argument potentially only applies to 'pay and display' car parks, as case law shows that it does not apply to car parks offering free parking for a set number of hours, which are often found at supermarkets and retail parks.

The truth behind parking fines

If you're in a dispute with car parking firm, chances are they will cite the case of Parkingeye v Beavis as evidence courts uphold Parking Charge Notices and force motorists to pay them. In the 2015 Beavis case, the Supreme Court ruled that Parking Charge Notices were not penalty charges, and consequently could be enforced by the courts.

The Supreme Court's 57,000 word judgment, which ran to a War and Peace worthy 212 pages, effectively rewrites the law regarding of 'penalty charges'.

In essence, the court held that a clause will not be regarded as a penalty if it 'serves a legitimate purpose' and is not 'manifestly excessive'.

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The Supreme Court judges ruled: "ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets."

This appears to effectively give parking firms the power to issue 'penalty' charges that will by upheld and enforced by the judiciary.

So why haven't the car parking firm taken me to court?

Aside from the obvious answer of 'they couldn't be bothered with the hassle, despite taking other people to court', I believe I had three arguments - which I outlined in the numerous letters that went back and forth between us - that made their case against me weaker than Bambi.

The signs detailing charges were unilluminated and not clear – consequently there was no 'offer' for me to accept, and so no contract formed.

The parking firm rejected payment that more than covered the cost of parking and consequently they failed to mitigate their losses, potentially rendering any claim for contractual damages void

Parkingeye v Beavis potentially does not apply to Pay and Display car parks

Does Parkingeye v Beavis apply to pay and display car parks?

Firstly, it's important to note the Beavis case related to a 'free parking for three hours' car park at a retail site, and not a 'pay and display' car park. Consequently a judge potentially has the the ability to distinguish between the two scenarios, as the facts of the cases would be materially different, and could decide to not to follow the precedent set in Beavis.

My argument, which as far as I am aware has not been tested in court, centres around consideration – one of the three essential elements of a contract explained earlier, during the interminably dull part of this article most people either skipped or fell asleep reading.

If you didn't, here's some more interminably dull legal argument for you... In pay and display car parks, the parking fee is the 'benefit' offered to car parking firm, which means the 'excess' charge can only be a penalty. In the free parking car parks, like the one in Beavis, the only 'consideration' is the charge for over-staying, so it cannot be a penalty charge as it is the agreement to pay it is only 'consideration' offered by the motorist.

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After more than a year of arguments and letters back and forth with the parking firm, and the debt collection firm they tasked with collecting the money they claimed I owed, I have now heard nothing for nearly a year – and not since I pointed out the actions of the debt collection firm, which sent multiple letters using different company names, were potentially fraudulent.

In one of their final letters to me, the debt collection company implied it, rather than the car parking firm, would begin legal action imminently if I did not pay up.

Privity of contract rules entitle the parties of a contract to sue each other for damages – but prevent third parties from doing so. If a contract for parking existed, the parties involved would be myself and the car parking firm.

The debt collection firm are a third party, and therefore cannot take legal action – and implying they can is a false representation of law and fact.

Dishonestly making a false representation you know is, or might be, untrue or misleading, with the intent to make gain for yourself or another, is a criminal offence contrary to section 2 of the Fraud Act 2006.

I politely pointed this out to the debt collection company - and have not had a request for payment for the Parking Charge Notice since.

Want to contest a Parking Charge Notice?

Simply respond that you are refusing to pay. DON'T say you are appealing the ticket, as this legitimises the ticket. Also write "Without Prejudice" on the letter – then no information in the letter can be used against you.

If you wish to dispute the ticket, then you have 28 days in which to dispute after the firm that issued the ticket has rejected your appeal.

What next?

If the company rejects your dispute, then you can escalate to the firm's trade member association. You must have an official reference number from the company and their reasons for rejecting your dispute. They may refer you to a body such as POPLA, the Independent Tribunal for Parking Fines. Around 40% of appeals are upheld in the favour of the public.

However,while organisations such as POPLA cliam to be independent, they are funded by the car parking industry.

I elected not to ask POPLA adjudicate. I simply refused to pay, stated my argument why - and asked the parking firm to take me to court.

If you do not pay, then their next step is to recover the money. To do this they must take legal action against you.

Most fines will go to the Small Claims Court. However, the firm may threaten/use the County Court. If handled through the Smalls Claims Court, you will be required to pay the fine but not the company's costs. Prior to the Beavis case, only around 2-5% of cases went to court per year. This is likely to have risen, with parking firms being emboldened by the decision in Beavis.

How did they get hold of my personal details?

Accredited parking companies (members of either the British Parking Association or the Independent Parking Committee) are able to access your details from the DVLA.

Want to contest a Penalty Charge Notice?

If you are going to dispute, then you should collate as much evidence as possible to support your case. Take photos of where you received the ticket.

Grounds for dispute

Get all the evidence you can

Look out for:

Signs: are the signs unclear or not visible where you parked? See if you can demonstrate the signs were not reasonably visible and therefore you were unaware of the terms.

Ground markings: are any parking bays unclear, confusing or is there no ground marking at all so that you could not determine where to park?

Meter: take a picture of the ticket and the meter, along with all writing on the meter. Were the parking times or the amount you had to pay unclear?